BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated February ______, 2001 and is entered
into by and between GO ONLINE NETWORKS CORP (hereinafter "GONT" or "CLIENT") and
WINDSOR PARTNERS, INC. (hereinafter "WPI").
1. CONDITIONS. This Agreement will not take effect, and WPI will have no
obligation to provide any service whatsoever, unless and until CLIENT returns a
signed copy of this Agreement to WPI (either by mail or facsimile copy). In
addition, CLIENT shall be honest and forthright with WPI in regard to any
relevant or material information provided by CLIENT, verbally or otherwise which
refers, relates, or otherwise pertains to the CLIENT's business, this Agreement
or any other relevant transaction. Breach of either of these conditions shall be
considered a material breach and will automatically grant WPI the right to
terminate this Agreement and all moneys, and other forms of compensation, paid
or owing as of the date of termination by WPI shall be forfeited without further
notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with WPI in
carrying out the purposes of this Agreement, keep WPI informed of any
developments of importance pertaining to CLIENT's business and abide by this
Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, WPI will perform
the following services for CLIENT:
2.1 ADVICE AND COUNSEL. WPI will provide advice and counsel regarding
CLIENT's strategic business plans, strategy and negotiations with potential
business strategic partnering, corporate planning and or other general business
consulting needs as expressed by CLIENT.
2.2 MERGERS AND ACQUISITIONS. WPI will provide assistance to CLIENT, as
mutually agreed, in identifying merger and / or acquisition candidates,
assisting in any due diligence process, recommending transaction terms and
providing advice and assistance during negotiations, as needed.
2.3 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE. WPI will
participate and assist CLIENT in the due diligence process, where possible, on
all proposed financial transactions affecting CLIENT of which WPI is notified in
writing in advance, including conducting investigation of and providing advice
on the financial, valuation and stock price implications of the proposed
transaction(s).
2.4 ANCILLARY DOCUMENT SERVICES. If necessary, WPI will assist and
cooperate with CLIENT in the development, editing and production of such
documents as are reasonably necessary to assist in any transaction covered by
this Agreement. However, this Agreement will not include the preparation or
procuring of legal documents or those documents normally prepared by an
attorney.
2.5 ADDITIONAL DUTIES. CLIENT and WPI shall mutually agree, in writing, for
any additional duties that WPI may provide to CLIENT for compensation paid or
payable by CLIENT under this Agreement. Although there is no requirement to do
so, such additional agreement(s) may be attached hereto and made a part hereof
by written amendments to be listed as "Exhibits" beginning with "Exhibit A" and
initialed by both parties.
2.6 STANDARD OF PERFORMANCE. WPI shall devote such time and efforts to the
affairs of the CLIENT as is reasonably necessary to render the services
contemplated by this Agreement. Any work or task of WPI provided for herein
which requires CLIENT to provide certain information to assist WPI in completion
of the work shall be excused (without effect upon any obligation of CLIENT)
until such time as CLIENT has fully provided all information and cooperation
necessary for WPI to complete the work. The services of WPI shall not include
the rendering of any legal opinions or the performance of any work that is in
the ordinary purview of a certified public accountant, or other licensed
professional. WPI cannot guarantee results on behalf of CLIENT, but shall use
commercially reasonable efforts in providing the services listed above. If an
interest is communicated to WPI regarding satisfying all or part of CLIENT's
business and corporate strategic planning needs, WPI shall notify CLIENT and
advise it as to the source of such interest and any terms and conditions of such
interest.
2.7 NON-GUARANTEE. WPI MAKES NO GUARANTEE THAT WPI WILL BE ABLE TO
SUCCESSFULLY LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN CONSUMMATE A
MERGER OR ACQUISITION TRANSACTION FOR CLIENT, OR TO SUCCESSFULLY COMPLETE SUCH A
TRANSACTION WITHIN CLIENT'S DESIRED TIME FRAME. NEITHER ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOR THE PAYMENT OF DEPOSITS TO WPI BY CLIENT PURSUANT
TO FEE AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN SHALL BE CONSTRUED AS ANY
SUCH GUARANTEE. ANY COMMENTS MADE REGARDING POTENTIAL TIME FRAMES OR ANYTHING
THAT PERTAINS TO THE OUTCOME OF CLIENT'S NEEDS ARE EXPRESSIONS OF OPINION ONLY,
AND FOR PURPOSES OF THIS AGREEMENT ARE SPECIFICALLY DISAVOWED.
3. Compensation to WPI. COMPENSATION TO WPI.
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration for
WPI entering into this Agreement, Client agrees to cause 500,000 shares of its
common stock, par value $.001 per share, to be issued to Xxxxxxx Xxxxxx an
affiliate of WPI. When issued, said shares shall be free trading shares,
registered with the U.S. Securities and Exchange Commission on its Form S-8 or
similar registration. The registration and issuance of said shares shall take
place by no later than 15 days following the execution and delivery of this
Agreement, and all costs in connection therewith shall be borne by Client.
NOTE: WPI SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR HEREIN IF
PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY WPI WITHIN 15 DAYS OF MUTUAL
EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, WPI'S OBLIGATIONS UNDER
THIS AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING HEREUNDER IS MORE THAN
FIFTEEN (15) DAYS DELINQUENT. FURTHERMORE, THE RECEIPT OF ANY FEES DUE TO WPI
UPON EXECUTION OF THIS AGREEMENT ARE NOT CONTINGENT UPON ANY PRIOR PERFORMANCE
OF ANY DUTIES WHATSOEVER DESCRIBED WITHIN THIS AGREEMENT.
3.2 FEES FOR MERGER/ACQUISITION. In the event that WPI, assists CLIENT and
/ or introduces CLIENT (or a CLIENT affiliate) to any third party, merger
partner(s) or joint venture(s) who then enters into a merger, joint venture or
similar agreement with CLIENT or CLIENT's affiliate, CLIENT hereby agrees to pay
WPI advisory fees pursuant to the following schedule which are based on the
aggregate amount of such merger, joint venture or similar agreement with CLIENT
or CLIENT's affiliate. Advisory fees are deemed earned and shall be due and
payable at the first close of the transaction, however, in certain circumstances
when payment of advisory fees at closing is not possible, within 24 hours after
CLIENT has received the proceeds of such investment. This provision shall
survive this Agreement for a period of one year after termination or expiration
of this Agreement. In other words, the advisory fee shall be deemed earned and
due and payable for any funding, underwriting, merger, joint venture or similar
transaction which first closes within a year of the termination or expiration of
this Agreement as a result of an introduction as set forth above.
MERGER/ACQUISITION. For a merger/acquisition entered into by CLIENT as a result
of the efforts of, or an introduction by WPI during the term of this Agreement,
Client shall pay WPI, ten (10) percent of the total value of the transaction.
For a merger/acquisition entered into by CLIENT as a result of the efforts of
WPI and the introduction by CLIENT during the term of this Agreement, Client
shall pay WPI, five (5) percent of the total value of the transaction. Such
percentage(s) shall be paid to WPI in the same ratio of cash and / or stock as
the transaction or in any other payment form mutually agreed to in writing by
both parties.
3.3 EXPENSES. CLIENT shall reimburse WPI for reasonable expenses incurred in
performing its duties pursuant to this Agreement (including printing, postage,
express mail, photo reproduction, travel, lodging, and long distance telephone
and facsimile charges); provided, however, that WPI must receive prior written
approval from CLIENT for any such expenses. Such reimbursement shall be payable
within 10 ten days after CLIENT's receipt of WPI invoice for same.
3.4 ADDITIONAL FEES. CLIENT and WPI shall mutually agree upon any
additional fees that CLIENT may pay in the future for services rendered by WPI
under this Agreement. Such additional agreement(s) may, although there is no
requirement to do so, be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
4. INDEMNIFICATION. The CLIENT and WPI agree to mutually indemnify and hold
harmless each other and each of their officers, directors, employees and
shareholders against any and all liability, loss and costs, expenses or damages,
including but not limited to, any and all expenses whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
sustained by any person or to any person or property, arising out of any act,
failure to act, neglect, any untrue or alleged untrue statement of a material
fact or failure to state a material fact which thereby makes a statement false
or misleading, or any breach of any material representation, warranty or
covenant by CLIENT or WPI or any of their agents, employees, or other
representatives. Nothing herein is intended to nor shall it relieve either
party from liability for its own willful act, omission or negligence. All
remedies provided by law, or in equity shall be cumulative and not in the
alternative.
5. CONFIDENTIALITY.
5.1 WPI and CLIENT each agree to keep confidential and provide reasonable
security measures to keep confidential information where release may be
detrimental to their respective business interests. WPI and CLIENT shall each
require their employees, agents, affiliates, other licensees, and others who
will have access to the information through WPI and CLIENT respectively, to
first enter appropriate non-disclosure Agreements requiring the confidentiality
contemplated by this Agreement in perpetuity.
5.2 WPI will not, either during its engagement by the CLIENT pursuant to
this Agreement or at any time thereafter, disclose, use or make known for its or
another's benefit any confidential information, knowledge, or data of the CLIENT
or any of its affiliates in any way acquired or used by WPI during its
engagement by the CLIENT. Confidential information, knowledge or data of the
CLIENT and its affiliates shall not include any information that is, or becomes
generally available to the public other than as a result of a disclosure by WPI
or its representatives.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented only by written agreement of WPI and CLIENT.
6.2 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The obligations of either party hereunder
cannot be assigned without the express written consent of the other party.
6.3 GOVERNING LAW; VENUE. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of California, without regard to its conflict of law doctrine. CLIENT
and WPI agree that if any action is instituted to enforce or interpret any
provision of this Agreement, the jurisdiction and venue shall be Orange County,
California.
6.4 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees and costs, in addition to any other relief to
which that party may be entitled. This provision shall be construed as
applicable to the entire Agreement.
6.5 SURVIVABILITY. If any part of this Agreement is found, or deemed by a
court of competent jurisdiction, to be invalid or unenforceable, that part shall
be severable from the remainder of the Agreement.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN CLIENT,
WPI OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR ENTITY,
ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS AGREEMENT, SHALL BE
RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH LITIGATION. WITH RESPECT TO
THE ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE
THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT, INCLUDING
THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT FROM
COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK MODIFICATION OF
RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE ANY AND
ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO THE
AMERICAN ARBITRATION ASSOCIATION, IN ORANGE COUNTY, CALIFORNIA WITHIN FIVE (5)
DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON REQUEST,
THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION PROCEEDING, BUT IS UNDER
NO OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL TAKE PLACE
IN ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO
RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR SHALL
UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY ARBITRATION FORUM LOCATED IN
ORANGE COUNTY, CALIFORNIA, OVER ANY MATTER WHICH IS THE SUBJECT OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE LOSING
PARTY ITS LEGAL FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH
THE DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO
ARBITRATION AS PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL AND
CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT AND
EXECUTION FOR COLLECTION.
8. TERM/TERMINATION. This Agreement is an agreement for the term of
approximately six (6) months ending August 31, 2001.
9. REGISTRATION OF SHARES. WPI shall have standard piggyback registration
rights (as described in Section 3.2 herein) of all shares issued in accordance
with this Agreement, which are not subject to registration per Section 3.0 et
seq. herein.
10. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby
agrees that WPI may introduce (whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities, including, without
limitation, natural persons, corporations, limited liability companies,
partnerships, unincorporated businesses, sole proprietorships and similar
entities (hereinafter an "Opportunity" or ""Opportunities""). CLIENT further
acknowledges and agrees that the identity of the subject Opportunities, and all
other information concerning an Opportunity (including without limitation, all
mailing information, phone and fax numbers, email addresses and other contact
information) introduced hereunder are the property of WPI, and shall be treated
as confidential and proprietary information by CLIENT, it affiliates, officers,
directors, shareholders, employees, agents, representatives, successors and
assigns. CLIENT shall not use such information, except in the context of any
arrangement with WPI in which WPI is directly and actively involved, and never
without WPI's prior written approval. CLIENT further agrees that neither it nor
its employees, affiliates or assigns, shall enter into, or otherwise arrange
(either for it/him/herself, or any other person or entity) any business
relationship, contact any person regarding such Opportunity, either directly or
indirectly, or any of its affiliates, or accept any compensation or advantage in
relation to such Opportunity except as directly though WPI, without the prior
written approval of WPI. WPI is relying on CLIENT's assent to these terms and
their intent to be bound by the terms by evidence of their signature. Without
CLIENT's signed assent to these terms, WPI would not introduce any Opportunity
or disclose any confidential information to CLIENT as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
GO ONLINE NETWORKS CORP (GONT)
Print Name: Xxxxxx X. Xxxxxxxx
Sign Name: /s/ Xxxxxx X. Xxxxxxxx
Title: President
Date:
WINDSOR PARTNERS, INC. ( WPI)
Print Name: Xxxxxxx X. Xxxxxx
Sign Name: /s/ Xxxxxxx X. Xxxxxx
Title: President
Address: 00000 Xxxxx Xxxx Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
